The first recommendation handed down by the Senate Select Committee in its report, was “that the Australian government reviews and amends the Fair Work Act 2009 (Cth) and provisions relating to stillbirth in the National Employment Standards (NES) to ensure that:
- Provisions for stillbirth and miscarriage are clear and consistent across all employers, and meet international best practice such as those contained in the Ausgrid Enterprise Agreement; and
- Legislative entitlements to paid parental leave are unambiguous in recognising and providing support for employees who have experienced stillbirth.”
Under section 77A of the Fair Work Act (2009), an employer can reduce or cancel an employee’s period of unpaid parental leave if a baby is stillborn.
If unpaid parental leave has not yet started, your employer (or you) can cancel the leave with written notice. In the case of a stillbirth, you are no longer entitled to your unpaid parental leave. Some employers/employees negotiate additional sick leave or special maternity leave instead if you are unable to work.
If you have commenced your unpaid parental leave and your baby is stillborn or dies, you are still entitled to be on unpaid parental leave until you or your employer end the leave. An employer, however, can end the leave by giving at least six weeks’ notice in writing requesting that you return to work on a specific day. You may also end the leave by giving their employer four weeks’ notice. Your employer must respond with a return to work date within that four weeks.
The Stillbirth Foundation has been advocating for a change to clause 77A, to no longer allow an employee’s unpaid parental leave to be revoked. Parents impacted by stillbirth deserve to be recognised as parents and receive the same entitlements as parents who take home live, healthy babies.